250 P. 390 | Cal. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *540
The petitioner, Daniel O'Connell, was precluded from practicing as an attorney and counselor in the courts of the state by an order of this court made December 28, 1920. (In re O'Connell,
It is the contention of the petitioner that, although the cause has been transferred here, this court cannot go behind the opinion of the district court of appeal, and must confine its consideration to any errors appearing on its face, and that this court is bound by the findings of fact, express or implied, made by the other court. The rule contended for by petitioner has no application to this case, for the district courts of appeal have original jurisdiction over applications for restoration to practice after disbarment. When such causes are transferred to this court it is immaterial that the opinion of the district court of appeal may not show any error upon its face, when considered without regard to the record. The practice established by our decisions, to the effect that, in considering petitions for hearing in this court, after judgment in the district court of appeal, we will consider only the opinion of that court and will not look into the record, is confined to appeals required by the constitution to be taken to the district court of appeal, and has never been extended to original proceedings instituted in *541
those courts. (Rockridge Place Co. v. City Council,
Daniel O'Connell, the applicant for reinstatement, was convicted, with other defendants, in the United States district court for the northern district of California of the crime of having wilfully engaged in a conspiracy to obstruct the recruiting or enlistment service of the United States when the nation was at war. Judgment and sentence to imprisonment for seven years in the United States penitentiary at McNeil Island was affirmed by the United States supreme court (O'Connell v.United States,
After serving for a time in the federal prison O'Connell returned to San Francisco and petitioned for reinstatement. His application was opposed by the San Francisco Bar Association, which filed an answer denying generally the alleged good behavior of the petitioner and his fitness to practice law. It also denied that petitioner is a person of good moral character. By stipulation of the parties the matter was referred to Mr. Justice Nourse, of the district court of appeal, sitting as a commissioner for the taking of testimony, which appears to have been largely directed to the question of the moral character of the applicant.
O'Connell is a man advanced in years, who has practiced law many years, and has no other means of earning a livelihood. He was admitted to practice at the bar of the supreme court of the District of Columbia in 1886, and in the same year was constituted an attorney and counselor of the district court of the United States for the District of Massachusetts. He is still on the list of attorneys in each *542 court, and, according to the certificate of the respective clerks, is in good standing so far as those courts are concerned. O'Connell testified to his own good character, and presented a document from which it appeared that the signers, some twenty-five in number, "believed" O'Connell to be a person of good moral character and fit to practice law. It was signed by members of the bar of this state practicing in San Francisco and by public officials, all of whom have known the petitioner for many years. A number of the signers appeared before the commissioner and testified to O'Connell's present good moral character. Some of them admitted that when they signed the statement they were not aware of O'Connell's previous record of conviction and disbarment. Others said, in effect, that their testimony would have been the same if they had possessed such knowledge.
In support of the opposition to the reinstatement of petitioner it was shown that on July 7, 1897, O'Connell was convicted in the superior court of Middlesex County, Massachusetts, on a charge of being accessory to the giving of a bribe to a municipal officer of the city of Lowell, with intent to influence the officer's vote on an official matter. The judgment of conviction was affirmed. (Commonwealth v. Donovan et al.,
From this summary of the record it appears that the petitioner's application for restoration rests primarily upon his opinion of himself, and that of others, that he is now possessed of a good moral character and is fit to practice law. If that were the only evidence in the record to be given effect we could, with entire propriety, hold it sufficient to support a favorable consideration of petitioner's application. But a present apparent good moral character is not the only qualification that recommends an attorney for readmission to the society and association of the legal profession. "When a member of the profession has been found lacking in the requisites which go to make him a helper to his clients, and has been discovered to possess aims, views and purposes which indicate a moral obliquity in him, and which might make his clients his victims, it is well that he were removed from the possibility of doing them harm. When he has been once disbarred, a mistaken charity should not restore him to his position. That restoration should only come when he has lived long enough after his disbarment in honorable intercourse with his fellow citizens to demonstrate that he is both tried and true." (Application of Shepard,
When O'Connell was before this court in the disbarment proceeding he stoutly maintained that the crime of which he was convicted did not involve moral turpitude. He is, in effect, making the same contention here. The criminality of the offense of which he was convicted was determined by the highest tribunal of the nation. (Frohwerk v. United States,
The application is, therefore, denied.
Richards, J., Shenk, J., Curtis, J., and Seawell, J., concurred.
Rehearing denied.